As a member of the European Union, Ireland’s public procurement legislation is highly shaped by European law, namely the general principles (EU Principles) derived from the Treaty on the Functioning of the European Union (TFEU) and the procurement directives. The procurement directives seek to level the playing field and protect open competition in Europe, particularly in the awarding of contracts by public authorities.

The EU procurement directives were implemented in Ireland through the following statutory instruments, which largely mirror the wording of the directives:

• The European Union (Award of Public Authority Contracts) Regulations 2016 (S.I. No. 284/2016) (Public Contracts Regulations) which implement Directive 2014/24/EU;
• The European Union (Award of Contracts by Utility Undertakings) Regulations 2016 (S.I. No. 286/2016) (Utilities Regulations) which implement Directive 2014/25/EU;
• The European Union (Award of Concession Contracts) Regulations 2017 (S.I. No. 203/2017) (Concessions Regulations) which implement Directive 2014/23/EU; and
• The European Union (Award of Contracts relating to Defence and Security) Regulations 2012 (S.I. 62/2012) (Defence Regulations) which implement Directive 2009/81/EC.

The Public Contracts Regulations, the Utilities Regulations and the Concessions Regulations are together referred to as the Procurement Regulations. Several further regulations govern the remedies available for a breach of the substantive procurement rules. These are set out in the response to Question 14.

Ireland is a party to the WTO GPA through its membership of the European Union. The Public Contracts Regulations and the Utilities Regulations require contracting authorities and contracting entities to apply no less favourable treatment to the economic operators and signatories of the WTO GPA than to economic operators of the EU.

The substantive regulations are outlined in response to question 1.

The Utilities Regulations govern procurements by entities operating in the water, energy, transport and postal service sectors above the EU thresholds.

The Defence Regulations govern the award of certain contracts by contracting authorities and contracting entities operating in the defence and security sectors.

The Capital Works Management Framework (CWMF) comprises a set of guidance, standard contracts and generic template documents for the procurement of all works and works related services by public sector bodies. The documents and guidance can be accessed at https://cwmf.gov.ie/en/.

The Office of Government Procurement has also issued guidelines (OGP Guidelines) and templates for the procurement of goods and services which promote best practice and consistency in the application of the public procurement rules in Ireland, particularly for procurements below the EU thresholds. These can be accessed at https://ogp.gov.ie/public-procurement-guidelines-for-goods-and-services/.

The Procurements Regulations apply to the award of contracts with an estimated value above the EU thresholds. The EU thresholds are updated every two years in line with WTO GPA requirements to account for currency fluctuations. From 1 January 2026, the thresholds (excl VAT) are:

The Concessions Regulations apply to all concessions valued in excess of €5,404,000 (excl VAT).

The EU thresholds are supplemented by national thresholds. The thresholds for supplies and services are set out in Circular 05/2023 published by the Department of Public Expenditure, Infrastructure, Public Service Reform and Digitalisation, supplemented by the OGP Guidelines.

Supplies and services contracts above €50,000 (excl VAT) should be advertised on Ireland’s national tendering website (www.etenders.gov.ie) as part of a formal tendering process using the open procedure. In short, this entails:

• drawing up tender documents and setting down basis for selection and award criteria;
• determining the relative weightings of award criteria;
• evaluating tenders against selection and award criteria;
• selecting the highest scoring tender and awarding the contract accordingly; and
• providing unsuccessful tenderers with reasons as to why they were unsuccessful.

Supplies and services contracts (except works-related services) between €5,000 and €50,000 (excl VAT) can be awarded on the basis of written specifications issued to at least three suppliers or on the basis of responses to at least three quotations sought via electronic request for quotations on eTenders. The quotes should be evaluated objectively against the specified requirements, using a conventional scoring sheet.

Contracts with a value of less than €5,000 can be awarded on the basis of verbal or written quotes from one or more suppliers (best practice is three quotes confirmed by email).

The thresholds for works and works-related services contracts are also set out in Circular 05/2023, supplemented by the CMWF. Works contracts above €200,000 (excl VAT) should be advertised on eTenders. Contracts below that threshold can be awarded on the basis of at least 5 written tenders from interested and competent contractors. For contracts for works-related services, the relevant national threshold is €50,000 (excl VAT)

In order to estimate the value of a public contract, it is necessary to add up the total expected value over the contract’s life, including any options and/or renewals but excluding VAT.

Irrespective of value, all public contracts which are of potential cross-border interest are covered by the EU Principles.

A series of public procurement guidelines and circulars issued by the Irish Government lay down rules for procurement processes below the EU thresholds. Please refer to the response to question 3 above.

Save for exceptional circumstances, as outlined below, all tenders which meet the national advertising thresholds set out above must be published on eTenders, regardless of the procedure used. If a procurement contract is above the EU threshold, it also has to be published on a European level, i.e. in the Official Journal of the European Union (OJEU).

Contracting authorities and contracting entities must use a contract notice as a means of calling for competition in respect of all procedures. A contract notice must set out all information specified in the Procurement Regulations. At a high-level, a contract notice should outline (among other things):

• a description of the contracting authority or entity and its main activities;
• the contract title, CPV codes and main location of performance;
• the type of procedure being used;
• a description of the subject matter;
• award criteria and their respective weightings;
• minimum requirements that all tenders must meet;
• time limits for receipt of requests to participate and initial tenders;
• details of how to obtain procurement documents;
• where appropriate, indication of staged procedures, candidate numbers etc.

In certain circumstances, where a restricted procedure or competitive procedure with negotiation is used, the call for competition can be made by means of a prior information notice (PIN). A PIN is generally used to inform potential tenderers of possible upcoming tenders. Where a PIN is used as a call for competition, potential tenderers who have expressed an interest following the PIN must be invited to confirm their interest in writing by means of an invitation to confirm interest.

Selection of bidders at the initial selection stage is governed by Regulation 58 of the Public Contracts Regulations which allows for the following selection criteria:

• suitability to pursue a professional activity: this relates to the legal suitability of a bidder. Commonly used criteria include professional registrations, certifications, authorisations, licences and tax clearance;
• economic and financial standing: this ensures that the bidder has the financial capacity and strength to deliver the proposed contract successfully. Commonly used criteria include turnover levels, financial statements, bank or auditor statements and insurance; and
• technical and professional ability: this ensures that the bidder has sufficient technical know-how and experience to perform the proposed contract. Commonly used criteria include a list of similar contracts performed over the past five years, educational and professional qualifications of the proposed team and technical equipment available for carrying out the proposed contract.

Selection criteria must also be related and proportionate to the subject matter of the contract concerned.

The Utilities Regulations allow a contracting entity to establish objective rules and criteria for the exclusion and selection of tenders or candidates. In doing so, the contracting entity must take account of the need to ensure adequate competition when selecting the number of candidates.

Regulation 57(1) of the Public Contracts Regulations sets out a number of mandatory exclusion grounds. A contracting authority is obliged to exclude a bidder from a procurement process where it becomes aware that the bidder has been convicted of one or more of the following offences within the last five years:

• participation in a criminal organisation;
• corruption;
• fraud;
• terrorist offences or offences linked to terrorist activities;
• money laundering or terrorist financing; and
• child labour and other forms of trafficking in human beings.

Regulation 57 contains further grounds in which a bidder shall be excluded from participation in a procurement procedure. These include where the contracting authority is aware that the bidder is in breach of its obligations relating to the payment of taxes or social security obligations and where such breach is the subject of a final and binding judicial or administrative decision.

There are certain circumstances in which a contracting authority is not obliged to exclude a bidder under Regulation 57, for example where there are overriding reasons relating to the public interest such as public health or protection of the environment or where such an exclusion would be disproportionate.

Further, Regulation 57(8) of the Public Contracts Regulations lists a number of discretionary exclusion grounds. A contracting authority may exclude an economic operator from participation in a procurement procedure:

• where the contracting authority can demonstrate by any appropriate means a violation of applicable obligations in the fields of environmental, social and labour law;
• where the bidder is bankrupt or the subject of insolvency or winding-up proceedings, where its assets are being administered it is in an arrangement with creditors, where its business activities are suspended or it is in an analogous situation;
• where the contracting authority can demonstrate that the bidder is guilty of grave professional misconduct which renders its integrity questionable;
• where the contracting authority has sufficiently plausible indications to conclude that the bidder has entered into agreements with other economic operators aimed at distorting competition;
• where a conflict of interest cannot be effectively remedied by other, less intrusive measures;
• where a distortion of competition from the prior involvement of the bidder in the preparation of the procurement procedure cannot be remedied by other, less intrusive, measures;
• where the bidder has shown significant or persistent deficiencies in the performance of a substantive requirement under a prior public contract or concession which led to early termination of that contract, damages or comparable sanctions;
• where the bidder has been guilty of serious misrepresentation in supplying the information required for the verification of the absence of exclusion grounds or the fulfilment of selection criteria, has withheld such information or is not able to submit supporting documents; or
• where the bidder has undertaken to unduly influence the decision-making process of the contracting authority or obtain confidential information that may give it undue advantages or where the bidder has negligently provided misleading information that may have a material influence on decisions concerning exclusion, selection or award.

In all circumstances, the Procurement Regulations provide for ‘self-cleaning’ measures which allow bidders to demonstrate their reliability despite the existence of an exclusion ground. Bidders may provide evidence to show that they have taken certain measures to rectify the relevant exclusion ground, and a contracting authority may then decide not to exclude the bidder.

The Utilities Regulations provide that, where a contracting entity is a contracting authority, the mandatory exclusion grounds of the Public Contracts Regulations apply. In all other circumstances, the contracting entity may establish objective rules and criteria for the exclusion and selection of tenderers or candidates which must be made available to interested bidders.

Complex contracts are often procured through either a competitive procedure with negotiation or a competitive dialogue. These procurement procedures can only be used when the needs of the contracting authority cannot be met without adaptation of existing solutions, when the requirements include design or innovative solutions, when the contract requires negotiation due to its complexity or risks or the legal and financial make-up or where technical specifications cannot be established with sufficient precision. These procedures can also be used when only irregular or unacceptable tenders were submitted in a previous open or restricted procedure.

Both procedures can generally be distilled into the following phases:

(1) Planning and pre-market engagement: The Procurement Regulations allow contracting authorities to conduct preliminary market consultations with a view to preparing the procurement and informing potential bidders of the contracting authority’s procurement plans and requirements. During such market consultations, contracting authorities are permitted to seek advice from independent experts, authorities or market participants, provided that this does not have the effect of distorting competition or result in a violation of the principles of non-discrimination and transparency.

(2) Advertisement: Contract notice or call for competition is published (either on eTenders and/or OJEU depending on whether EU thresholds are met), including the pre-qualification questionnaire and accompanying documents. The minimum time limit for receipt of responses is 30 days from the date on which the contract notice was sent.

(3) Selection stage: The applications are then assessed against the exclusion grounds and selection criteria. Contracting authorities are permitted to limit the number of bidders invited to the next stage on the basis of objective and non-discriminatory criteria or rules. The minimum number of candidates invited to the next stage shall be three. Where less than three bidders meet the selection criteria, the contracting authority can continue the procedure with those bidders meeting the criteria.

(4) Negotiation/Dialogue stage: The tender documentation is then issued to shortlisted bidders. In the competitive procedure with negotiation, bidders are invited to submit initial tenders. The contracting authority can then either award the contract directly in accordance with the published award criteria or hold negotiations on aspects of the tenders or the contract. In the competitive dialogue procedure, the contracting authority issues an invitation to participate in dialogue which must set out and define its needs and requirements, including the award criteria and an indicative timeframe. The contracting authority then enters into dialogue with the shortlisted bidders with the aim of identifying and defining the means best suited to satisfy the contracting authority’s needs. Both procedures can take place in successive stages to reduce the number of tenders or solutions by applying the published award criteria.

(5) Final tenders: Once the negotiations or dialogue are concluded, the contracting authority issues an invitation to submit final tenders to those bidders remaining in the process. In the competitive dialogue procedure, the contracting authority can request final tenders to be clarified, specified and optimised, provided that this does not involve changes to the essential aspects of the tender or of the procurement where such changes are likely to distort competition or have a discriminatory effect. The contracting authority must then evaluate final tenders against the published award criteria and identify the most economically advantageous tender.

(6) Award: The contracting authority must send out award decision letters to inform all bidders of the outcome of the procurement. The award decision letters must comply with the requirements of the Remedies Regulations (as defined in response to Question 14 below) and contain the name of the successful bidder, the standstill period, the scores of the bidder to whom the letter is addressed and the scores of the successful bidder and the characteristics and relative advantages of the successful bid. The contracting authority must then observe a 14-day standstill period in which it cannot enter into the contract. Once the contract has been entered into, a contract award notice must be published on eTenders and/or OJEU within 30 days.

The most commonly used procedure for such a low value contract is the open procedure. The open procedure is a single-stage procedure where any interested bidder can submit a tender in response to an advertised contract notice.

The first step is the publication of the contract notice on eTenders and OJEU, together with the procurement documents. These must include a clear description of technical and commercial requirements, the contract, applicable selection and award criteria, deadlines and other applicable rules which must be observed by bidders. All interested bidders may submit a tender; there is no pre-qualification or shortlisting stage.

Tenders are then evaluated in a single-stage process, first against any exclusion or selection criteria and then against the published award criteria. Tender are generally awarded on the basis of the most economically advantageous tender. No negotiation or dialogue is permitted. Once the preferred tender is identified, the contracting authority issues the award decision letters to all tenderers and following expiry of the standstill period, concludes the contract and publishes a contract award notice.

The restricted procedure may be used for a relatively low-value contract where a high level of market interest is anticipated, and the contracting authority wishes to limit the number of tenders evaluated. The restricted procedure is a two-stage process which allows for a pre-qualification stage before shortlisted bidders are invited to submit their tenders. The contracting authority advertises the contract opportunity, and all interested bidders may submit requests to participate and provide pre-qualification information. This information is used by the contracting authority to establish whether bidders are qualified to perform the contract and to select the bidders to be invited to tender. The contracting authority then issues the full tender documents, including the contract, to the shortlisted bidders. Tenders are then evaluated, and the contract awarded, in the same way as under the open procedure.

The OGP Guidelines and various Government Circulars encourage (and in some cases, require) contracting authorities to adopt certain practices, including:

• undertaking, on a case-by-case basis, preliminary market consultations prior to tendering to better understand the range of goods and services on offer, market developments and innovation, what commercial models are available, the competitive landscape and the specific capabilities of SMEs;
• sub-dividing contracts, including framework agreements, into smaller lots to support SME participation;
• using, where appropriate, framework agreements established by central purchasing bodies such as the OGP;
• using the open procedure, where reasonable and without compromising efficiency and value for money, for contracts valued below EU thresholds;
• ensuring that the financial capacity requirement of any tender is proportionate to the level of risk involved. This would involve assessing the risk associated with delivery of the goods or services pertaining to a particular project;
• considering, in respect of above threshold procurements, the publication of a Prior Information Notice on eTenders to outline the contracting authority’s intention with respect to planned procurements. This gives the market time to react and develop solutions in and is therefore particularly important in the case of large and complex contracts and where SMEs need time to find partners for joint and consortia bidding;
• considering how social and environmental issues can be appropriately integrated into the procurement process;
• taking into account whole lifecycle costs and not just acquisition costs;
• providing proportionate and constructive written feedback for below threshold contracts to assist suppliers in preparing future tenders;
• considering using a dynamic purchasing system for the procurement of commonly used goods, services or works which are generally available on the market. As dynamic purchasing systems remain open for new suppliers to join at any time, it is considered to be beneficial for SME participation and competition;
• using a public competitive process for light-touch contracts below the EU threshold to ensure value for money. The procedure used should be fair and impartial and comply with the general principles of EU law.

In addition to the above, the Irish Government has published a Green Public Procurement Strategy and Action Plan 2024-2027 which can be accessed here: https://www.gov.ie/en/department-of-climate-energy-and-the-environment/publications/green-public-procurement-strategy-and-action-plan-2024-2027/. Circular 17/2025 ‘Updated Green Public Procurement Instructions for Public Sector Bodies’ provides instructions to contracting authorities regarding actions outlined in this Green Public Procurement Strategy. The Circular also encourages public sector bodies to adopt socially responsible procurement strategies.

The Public Contracts Regulations and the Utilities Regulations stipulate that contracts must be awarded to the most economically advantageous tender. This can be determined on the basis or price of cost and may include the best price-quality ratio, which must be determined on the basis of award criteria linked to the subject matter of the contract. Cost assessments must use a cost-effectiveness method, including lifecycle costing. The cost element can take the form of a fixed price or cost, in which case bidders compete on quality criteria only.

The award criteria may comprise:

• quality, including technical merit, aesthetic and functional characteristics, accessibility, design for all users, social, environmental and innovative characteristics and trading and its conditions;
• organisation, qualification and experience of staff assigned to performing the contract, where the quality of the staff assigned can have a significant impact on the level of performance of the contract; or
• after-sales service and technical assistance, delivery conditions, including delivery date, delivery process and delivery period or period of completion.

Award criteria must ensure the possibility of effective competition and must be accompanied by specifications that allow the information provided by tenderers to be effectively verified in order to assess how well the tenders meet the award criteria.

Contracting authorities must also specify the relative weightings attached to award criteria, unless tenders are chosen on the basis of price alone.

There is no definition of an “abnormally low” tender in the Procurement Regulations or the EU Directives. The Public Contracts Regulations and the Utilities Regulations require contracting entities to ask tenderers to explain the price or costs proposed in a tender which appear to be abnormally low. The contracting must then assess the information provided by consulting the tenderer.

Tenders may only be rejected where the evidence supplied by the tenderer does not satisfactorily account for the low level of price or costs proposed. A contracting authority is required to reject a tender where it has been established that the prices are abnormally low because of:

(a) non-compliance with applicable obligations in the fields of environmental, social and labour law; and

(b) the tenderer has obtained State aid, and the tenderer is unable to provide that the aid is compatible with the internal market.

There have been a number of cases in the Irish courts which have considered the obligations on contracting authorities in relation to abnormally low tenders.

In White Mountain Quarries Limited t/a Breedon v Mayo County Council IEHC 259, the Irish High Court outlined the following procedural steps:

(1) The contracting authority must make a prima facie assessment of whether a tender is abnormally low, even in a case where it is only suspected to be so.

(2) If a tender appears to be abnormally low, the contracting authority must request the information required by Regulation 69 of the Public Contracts Regulations. While this is not required in every case, if there is so much as a suspicion, an investigation is required.

(3) The contracting authority must then assess the information by consulting the tenderer.

(4) Finally, the authority must determine whether the evidence supplied satisfactorily accounts for the low level of price or costs proposed.

Most recently, in Killaree Lighting Services Limited v Mayo County Council [2025] IECA 7, the Irish Court of Appeal outlined the following criteria which contracting authorities should consider when determining whether a tender is abnormally low:

• Correct assessment: In determining whether a contract is abnormally low, a contracting authority must assess whether a tender is genuine, reliable and will not impair proper performance of the contract.
• Reference to other contracts: The onus is on tenderers to identify any material that they wish to rely on. In this case, the Court found that it was not the duty of the contracting authority to look back through previous contract awards and certificates of compliance, but that this material should be produced by the tenderer.
• Price or cost: When determining whether a contract is abnormally low, contracting authorities are permitted to look at the overall price, i.e. the tender total, and/or the costs, i.e. the constituent parts of the tender.
• Comparison with other tenders: Contracting Authorities are not obliged to compare a tender with other tenders or to wait until all tenders have been submitted before excluding the tender on the grounds that it is abnormally low. Any clarifications by a contracting authority must be read in light of the request for tender, which is the primary document, and must be interpreted in line with EU case law.

Unsuccessful tenderers must be informed of the reasons why the contract was awarded to another tenderer at the same time they receive the contract award notification. The Remedies Regulations (as defined in the response to Question 14 below) set out the information which must be included in the contract award notification.

Any tenderer who submitted a valid tender must be provided with:

• the name of the successful tenderer (or, for a framework agreement, the names of all parties to the agreement);
• its scores and the scores of the successful tenderer;
• the characteristics and relative advantages of the successful tender;
• The exact standstill period that applies.

In the case of RPS v Kildare County Council [2016] IEHC 113, the Irish High Court held that, when setting out the characteristics and relative advantages of the successful tender, the contracting authority must set out the matters which should have been included in the unsuccessful tender or the matters contained in the successful tender. It also held that the statement of reasons must be sufficiently detailed to explain how the successful tender was advantageous by reference to particular matters, respects, examples or facts supporting a general assertion of relative advantage. Where an unsuccessful tenderer has scored higher on price, there is an extra onus on the contracting authority to properly explain why it lost on quality.

For above-threshold contracts, there are three sets of Remedies Regulations:

1. The European Communities (Public Authorities’ Contracts) (Review Procedures) Regulations 2010 (S.I. No. 130/2010) (Public Contracts Remedies Regulations);

2. The European Communities (Award of Contracts by Utility Undertakings) (Review Procedures) Regulations 2010 (S.I. No. 131/2010) (Utilities Remedies Regulations); and

3. The European Union (Award of Concession Contracts) (Review Procedures) Regulations (S.I. No. 326 of 2017) (Concessions Remedies Regulations).

The Defence Regulations set out the review procedures and remedies for a breach of the substantive rules in the Defence Regulations.

For contracts below the EU thresholds, unsuccessful parties may bring an application for judicial review before the Irish High Court. Leave must be granted by the Court prior to bringing such an application.

The Remedies Regulations provide for a number of remedies for breach of the Procurement Regulations for “eligible persons”. To be “eligible”, a person must:

• have, or have had, an interest in obtaining the reviewable contract; and
• allege that he or she has been harmed, or is at risk of being harmed, by the infringement complained of.

If a case is lodged with the High Court before the contract is signed, an automatic suspension applies. This prevents the contracting authority from entering into the contract until the case is determined or until the High Court lifts the automatic suspension. If the case is brought after the contract is entered into, the High Court may grant a number of remedies, including:

• setting aside, varying or affirming a decision;
• setting aside any discriminatory technical, economic or financial specifications in an invitation to tender, contract or other document relating to a contract award procedure;
• interlocutory orders to correct an alleged infringement or prevent further damage while the case is ongoing, including suspending the procedure or suspending the operation of a decision or a contract;
• declaring a reviewable public contract ineffective, which cancels all contractual obligations not already performed and sets aside the contract;
• damages as compensation for loss resulting from an infringement of EU or Irish law;
• alternative penalties and any necessary consequential order.

A declaration of ineffectiveness is only available in limited circumstances, including:

(i) where there has been a lack of prior publication, i.e. where the contracting authority has concluded the contract without advertising it (unless this is permitted by the Procurement Regulations);

(ii) where the contract has been entered into in violation of the suspension obligation and where this has deprived the tenderer from review of the possibility of pursuing pre-contractual remedies, combined with an infringement of the Procurement Regulations that has affected the chances of the tenderer applying for a review to obtain the contract;

(iii) in certain circumstances relating to framework agreements and dynamic purchasing systems, notably where advertising obligations were not adhered to.

In Killaree Lighting Services Limited v Mayo County Council [2025] IECA 7, the Irish Court of Appeal held that, as set out in the Public Contracts Remedies Regulations, where the High Court declines to declare the contract ineffective, it must impose an alternative penalty. The alternative penalty can be either or both of (i) a civil financial penalty up to 10% of the value of the contract or (ii) termination or shortening of the duration of the contract.

An unsuccessful party can also make a complaint to the European Commission at any time (without regard to any limitation period) which can culminate in proceedings against Ireland.

There is no statistical data which records conclusively the number of procurement claims or challenges made every year. Challenges are not uncommon, though the high costs associated with procurement litigation means that most procurement challenges do not progress to full trial. Many are resolved at an earlier stage, either by settlement or following interim applications. Where proceedings do continue, they often conclude at the stage of an application to lift the automatic suspension, rather than following a full substantive hearing.

The cost of a procurement law challenge can vary significantly depending on the scope of the proceeding, the complexity of the issues, the urgency of the matter and how proceedings unfold. By way of a broad indication, a challenge that proceeds to a full hearing on the merits (but without an appeal) may involve legal fees in the region of €150,000–€500,000+. Costs would generally be similar for both defendant contracting authorities and claimant tenderers but tend to be lower for notice parties. In Ireland, the winning party is entitled to have its reasonable legal costs paid by the other side. This means that the legal fees payable by the losing party are often double (or more than) the actual fees incurred by that party. The losing party may also be required to pay the legal fees of a notice party.

Some bidders believe that a challenge against a public body will lead to reputational harm and/or harm future procurement prospects. In particular, such reputational harm can occur where a bidder brings frequent or vexatious challenges, with no intention other than to delay and frustrate the award of the contract.

The period for resolution of a public procurement challenge in Ireland will depend on the complexity of the contract and whether the challenge is subject to the Remedies Regulation (i.e. where the value of the contract being procured is above the EU thresholds) or subject to standard judicial review proceedings.

The Remedies Regulations require applications to the High Court to be made within 30 calendar days of the applicant being notified of the decision or of the date the applicant knew or ought to have known of the infringement. The court may grant leave to make an application outside this time period if it considers that there is a good reason to do so. In practice, this rarely happens.

An application for a declaration that a contract is ineffective must be made within 30 days in the following cases:

(a) the contracting authority published an award notice in OJEU provided that, in the case of the negotiated procedure without prior publication, the award notice sets out the justification for not publishing a contract notice;

(b) the contracting authority notified each tenderer or candidate concerned of the outcome of their tender or application, together with a summary of the reasons for their rejection;

(c) for contracts based on a framework agreement or a dynamic purchasing system, the contracting authority notified each tenderer or candidate concerned of the outcome of the procurement process.

In any other case, an application for a declaration of ineffectiveness must be made within 6 months after the conclusion of the relevant contract.

If the procurement is not subject to the Remedies Regulations, an application for leave to apply for judicial review must be made promptly and in any event within 3 months from the date when grounds for the application first arose, unless the court considers that there is good reason for extending the period.

Before launching proceedings, a letter must be sent to the contracting authority indicating the intent to launch proceedings and setting out all of the infringements. The process of actually launching proceedings involves the preparation of a number of documents setting out the infringements, the facts underlying them, and the claims and reliefs being sought. These formal court documents are:

• A Statement of Grounds, setting out the grounds for the claim and the reliefs being sought;
• A Verifying Affidavit, setting out the facts referred to in the Statement of Grounds; and
• A Notice of Motion, alerting the contracting authority to the launch of the proceedings, the reliefs being sought and the first date the matter will appear in court.

The contracting authority, in turn, will need to prepare a Statement of Opposition and a Responding Affidavit.

Once proceedings have been launched and served, this automatically suspends the award of the contract (provided it has not already been awarded). The contracting authority can apply to the court to have this suspension lifted before trial. Such an application is a relatively major undertaking, and the authority may decide that, rather than investing time, effort and cost in seeking to lift the suspension, it is better off defending the proceedings as a whole, and seeking to have them heard and determined at the earliest time.

If the automatic suspension is lifted, the contract may be signed. It is still possible to continue the claim in court and seek damages; however, this is much more difficult. Where the automatic suspension is not lifted, then the trial will likely be expedited (given the need to resolve the issue).

The average time scales for procurement litigation will vary greatly, depending on the complexity of the issues, the number of parties, the urgency of the proceedings, the level of discovery and whether an application to lift an automatic suspension is made. The timescale often exceeds 12 months for a full trial but can be significantly shorter in urgent cases or for applications to lift the automatic suspension.

Bidders from EEA countries have the same rights and remedies as bidders based in Ireland.

Bidders from countries that are parties to the WTO Government Procurement Agreement (GPA) or other international agreements generally enjoy equal access and legal remedies, provided that the procurement falls within the scope of the relevant agreement. Specifically, Regulation 25 of the Public Contracts Regulations provides that bidders from GPA countries and from countries which have concluded international agreements with the EU must be treated no less favourably than economic operators from the EU, in so far as the procurement is covered by Annexes 1, 2, 4 and 5 and the General Notes to the EU’s Appendix 1 to the GPA and by the international agreements by which the EU is bound. An equivalent provision is included in the Utilities Regulations.

Bidders from non-EEA countries which have not concluded an international agreement with the European Union which guarantees access to public procurement in a reciprocal and equal manner (also referred to as ‘non-covered countries’) do not have an automatic right to participate in EU public procurement processes. The European Court of Justice has recently clarified that it is for each contracting authority to determine whether it admits, or not, operators from non-covered countries to a public procurement procedure (see C-652/22 Kolin and C-266/22 Qingdao). Contracting authorities may also exclude a consortium from participation where members of the consortium are from non-covered countries. If a contracting authority decides to admit bidders from non-covered countries, it can decide to apply any adjustment mechanism it considers appropriate.

Bidders from non-EEA countries are therefore not automatically entitled to equal treatment or non-discrimination under EU procurement law and their ability to access legal remedies in case of an unsuccessful bid is often limited. In practice, bidders from non-EEA countries must therefore carefully review the procurement documents and consider whether the procurement is covered by an international agreement.

Depending on the size of the procurement, the Foreign Subsidies Regulation (Regulation (EU) 2022/25602) might also apply.

There is as yet no definitive judgment on this point. However, in theory, if such a subsidiary is located within the EEA or a country which has an international agreement with the EU (e.g. GPA), it is on an equal footing with Irish bidders and entitled to the same rights and remedies. However, in a Q&A Paper on the Kolin and Qingdao judgements, the European Commission states that, where subcontractors from non-covered countries are proposed in a tender, or the capacities of economic operators from non-covered countries are relied upon in a tender, it is up to the contracting authority whether to admit such tenders. This suggests that it is up to each contracting authority to decide whether they wish to accept such bids in circumstances where the non-covered country parent is relied upon for its economic and financial standing or technical and professional ability.

As set out in response to Question 14, the High Court of Ireland is the judicial body or court with competence to resolve public procurement cases. Where the value of the case exceeds €1 million (as is often the case), an application can be made to transfer the case to the Commercial Court, which is a division of the High Court.

As a general rule, substantial modifications to a publicly procured contract are prohibited and require a new procurement process unless the modification falls within one of the specific derogations provided for in Regulation 72 of the Public Contracts Regulations.

A modification is considered substantial where the modification renders the contract materially different in character from the contract initially concluded and where the modification:

(a) introduces conditions which, had they been part of the initial procurement procedure, would have allowed for the admission of other candidates than those initially selected, allowed for the acceptance of a tender other than that originally accepted, or attracted additional participants in the procurement procedure;

(b) changes the economic balance of the contract in favour of the contractor in a manner not provided for in the initial contract; or

(c) extends the scope of the contract considerably.

In general terms, Regulation 72 allows a public contract to be modified:

(a) where the initial procurement documents provide for the modifications in “clear, precise and unequivocal review clauses”, provided the review clause states the scope and nature of possible modifications or options as well as the conditions under which they may be used and provided they do not alter the overall nature of the contract;

(b) for additional necessary works, services or supplies by the original contractor where a change of contractor cannot be made for economic or technical reasons and where it would cause significant inconvenience or substantial duplication of costs for the contracting authority;

(c) where the need for a modification has been brought about by circumstances which a diligent contracting authority could not have foreseen and the modification does not alter the overall nature of the contract;

(d) where a new contractor replaces the original contractor through
(i) an unequivocal review clause of option (see (a) above); or
(ii) universal or partial succession into the position of the initial contractor following corporate restructuring, including takeover, merger, acquisition or insolvency, of another economic operator that fulfils the criteria for qualitative selection initially established, where this does not entail other substantial modifications to the contract and is not aimed at circumventing the application of the Public Contracts Regulations;

(e) where the value of the modification is below the relevant EU threshold and below 10% of the initial contract value for services and supply contracts or 15% for works contracts, provided it does not alter the overall nature of the contract.

In each case, specific conditions apply which must be met in order for the contract modification to comply with the procurement rules. Similar rules are contained in the Utilities Regulations.

In our experience, direct awards for complex contracts are relatively uncommon as they are, as a general rule, not permitted under procurement law.

Regulation 32 of the Public Contracts Regulations allows a contracting authority to award a public contract through the negotiated procedure without prior publication. This enables an authority to negotiate directly with one or more providers without the requirement to publish an advertisement on eTenders/OJEU. This process essentially bypasses the transparency requirements of the EU Directives and is therefore interpreted strictly by the EU Courts and can only be used in very limited circumstances.

At a high level, the main situations in which the negotiated procedure without prior publication can be used are:

(a) where no (suitable) tenders or no (suitable) requests to participate have been submitted in response to an open procedure or a restricted procedure, where the initial conditions of the contract are not substantially altered;

(b) where the works, supplies or services can be supplied only by a particular economic operator for any of the following reasons:
(i) where the purpose of the procurement is the creation or acquisition of a unique work of art or artistic performance;
(ii) competition is absent for technical reasons;
(iii) the protection of exclusive rights, including intellectual property rights;

(c) insofar as is strictly necessary, for reasons of extreme urgency not attributable to the contracting authority and brought about by events unforeseeable by the contracting authority, such that the normal time limits for other procedures cannot be complied with.

Regulation 32 provides further detail on the conditions which must be met in relation to the above situations, as well as further circumstances in which the negotiated procedure without prior publication can be used, particularly for service and supply contracts.

A direct award is typically challenged on the basis that the precise conditions of Regulation 32 were not met and that the direct award is therefore in breach of the Public Contracts Regulations.

Prior to the war in Ukraine, the Covid-19 pandemic resulted in significant global supply chain disruption which ultimately led to challenges in the execution of public contracts already in effect/operation. In 2020, to accommodate for the disruption of the Covid-19 pandemic, the OGP published guidance for contracting authorities to respond to the crisis and ensure that procurement projects are kept operationally viable despite the restrictions imposed. This guidance outlined how contracting authorities can avail of different procurement procedures in the event of emergency, such as the negotiated procedure without prior publication, the accelerated open procedure etc.

Since the onset of the Ukraine war, the fulfilment of obligations for contractors under public procurement contracts has become even more difficult. Ireland followed the lead of the EU which moved to impose a raft of sanctions against Russia. On 8 April 2022, the OGP published an information note on the restrictive measure in the context of Russian actions in Ukraine. This note, which can be accessed here: https://www.gov.ie/en/office-of-government-procurement/publications/russian-sanctions/, outlines the sanctions on the participation of economic operators from Russia by EU Regulation 2022/576. The Regulation mandates the exclusion of Russian nationals or a natural or legal person, entity or body established in Russia, from participation in EU public procurement procedures.